Journal of Contemporary Health Law & Policy (1985-2015)
Volume 27 Issue 2 Article 7
2011
An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence
Sarah Theodore
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Recommended Citation Sarah Theodore, An Integrated Response to Sexting: Utilization of Parents and Schools in Deterrence, 27 J. Contemp. Health L. & Pol'y 365 (2011). Available at: https://scholarship.law.edu/jchlp/vol27/iss2/7
This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. AN INTEGRATED RESPONSE TO SEXTING: UTILIZATION OF PARENTS AND SCHOOLS IN DETERRENCE
Sarah Theodore*
Internet pornography is one of the fastest growing businesses, generating enormous revenues in the process. Unfortunately, with the expanding market for Internet pornography, there has been a rise in the demand for child pornography.2 Between 1996 and 2007, over 9,000 arrests were made relating to online child pornography.3 Congress and all fifty states have outlawed the production and possession of child pornography.4 However a
J.D. Candidate, The Catholic University of America, Columbus School of Law, May 2012; B.S., 2008, The University of Georgia. The author would like to thank her family and friends, especially her mom Julie Doppler, for all their love and support. The author would also like to thank the editors and staffers of The Journal of Contemporary Health Law and Policy Vol. XXVII and expert reader, Professor Mary G. Leary, for their hard work and input.
1. See Jerry Ropeleto, Internet PornographyStatistics, TOP TEN REVIEWS, http://internet-filter-review.toptenreviews.com/intemet-pornography-statistics.html (last visited Feb. 21, 2011) (stating that pornography revenues are larger than Microsoft, Google, Amazon, eBay, Apple and Netflix combined, with revenues reaching $97.06 billion in 2006).
2. See generally National PornographyStatistics, BYU WOMEN'S SERVS., BRIGHAM YOUNG UNIV., https://wsr.byu.edu/content/national-pornography-statistics (last visited Feb. 9, 2011) (citing statistics that child pornography generates three billion dollars each year, and there are over a hundred thousand websites offering illegal child pornography images).
3. Online ChildPornography/Child Sexual Exploitation Investigations, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/stats-services/publications/innocent- images-1/innocent-images-national-initiative (last visited Feb. 7, 2011).
4. Laws Concerning ChildPornography, NAT'L CTR FOR MISSING & EXPLOITED CHILDREN, http://www.missingkids.com/ missingkids/servlet/PageServlet?Language Country-en US&Pageld=1476#7 (last visited Mar. 24, 2010); Ferber v. New York, 458 U.S. 747, 747 (1982) (holding that states are allowed to regulate "pornographic depictions of children" because the "legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of the child, easily passing muster under the First Amendment."). In addition, the
365 366 The Journal of Contemporary Health Law and Policy Vol. XXVII:2
new question has arisen: What happens when the child voluntarily creates the pornography and disseminates it himself? In the United States, sixty-six percent of teenagers between the ages of eight and eighteen own their own cell phones, which is an explosion from thirty-nine percent five years ago.s That same demographic is sending, on average, 118 text messages per day. 6 While owning a cell phone and sending text messages are harmless activities unto themselves, juveniles that choose to explore their sexuality through the use of cell phones create an interesting problem. Among children between the ages of twelve and seventeen, four percent have sent sexually suggestive, nude or nearly nude images to someone else by text message, and fifteen percent of teens with a cell phone have received sexually suggestive, nude or nearly nude images. Juveniles' involvement in sexting is becoming an increasing problem that will likely worsen as usage of new technology amplifies. 9 Despite statutory provisions allowing for the prosecution of parties involved in the voluntary creation of child pornography, states continue to experience difficulty in
Court said that it was "evident beyond the need for elaboration" that the interest in protecting children from the harmful effects of child pornography was "compelling." Id. at 756-57. The Court also recognized that the possession and distribution of child pornography is related to the sexual abuse of children. Id. at 759.
5. VICTORIA J. RIDEOUT ET AL., THE KAISER FAMILY FOUND., GENERATION M2: MEDIA INTHE LIVES OF 8-18 YEAR OLDS 18 (Jan. 2010), http://www.kff.org/entmedial upload/8010.pdf.
6. Id.
7. AMANDA LENHART, PEW RESEARCH CTR., TEENS AND SEXTING: How AND WHY MINOR TEENS ARE SENDING SUGGESTIVE NUDE OR NEARLY NUDE IMAGES VIA TEXT MESSAGING 2 (Dec. 15, 2009), http://www.pewintemet.org/-/media//Files/Reports/2009/ PIPTeens-and Sexting.pdf.
8. Id.
9. RIDEOUT ET AL., supranote 5, at 2, 21 (comparing a 2004 report, showing that teenagers spend, on average, six and a half hours a day with media and a 2009 report showing that teenagers spend seven and a half hours a day with media. With multi- tasking, teenagers are packing ten hours of use into those seven and a half hours, and this occurs seven days a week. Currently, eighty-four percent of teenagers have Internet access at home, which is up from seventy-four percent in 1999.). 2011 An IntegratedResponse to Sexting 367
curbing this unfortunate trend. 0 Legislatures are looking for new ways to prevent the creation of child pornography by juveniles without throwing the full weight of child pornography laws onto them." New and creative methods of enforcement and deterrence are necessary to stop the growing trend and properly address a delicate class of citizens. This Note proposes a coordinated response between prosecutors, school officials, and parents in order to have a greater effect than prosecution alone on deterrence and punishment of juveniles involved in sexting. Part I discusses how sexting is defined and distinguishes sexting from traditional child pornography definitions. Part II explores the harms caused by child pornography and the consequences of juvenile participation in its production. Part III examines the gap in the current legislative responses and prosecution efforts. Part IV proposes a coordinated response involving prosecutors, parents, and schools to facilitate prevention and punishment of juvenile sexting.
I. WHAT IS SEXTING? IS SEXTING CHILD PORNOGRAPHY? WHO IS SEXTING?
A. The Definition of Sexting "Sexting" is a term often used to describe a minor's sending sexually explicit messages or taking sexually explicit pictures and transmitting them to their peers, but not a minor's sending these messages or pictures to adults.12 Juveniles can play various roles in the creation and sending of a "sext:" there is the person in the picture, the person taking the picture, the person or people possessing the picture, and the person or people distributing the picture. Each role can be played by the same person or by a number of people. While sexting is not a legal term, courts have recognized sexting as the sending or posting of sexually suggestive text messages and
10. Nathan Koppel and Ashby Jones, Are 'Sext' Messages a Teenage Felony or Folly?, WALL ST. J. (Aug. 25, 2010), http://online.wsj.com/article email/SB100014240 527487034470045754494230915522841MyQjAxMTAwMDIwNDEyNDQyWj.html#.
11. The National Conference of State Legislatures provides a list of all the states that are considering or have recently passed legislation regarding sexting. 2010 Legislation Relating to "Sexting," NAT'L CONFERENCE OF STATE LEGISLATURES (Jan. 4, 2011), http://www.ncsl.org/default.aspx?tabid=19696.
12. DENA T. SACCO, REBECCA ARGUDIN, JAMES MAGUIRE, AND KELLY TALLON, THE BERKMAN CTR. FOR INTERNET & Soc'Y, HARVARD UNIv., SEXTING: YOUTH PRACTICES AND LEGAL IMPLICATIONS 3 (June 22, 2010), http://cyber.law.harvard.edu/sites/ cyber.law.harvard.edulfiles/Sacco Argudin MaguireTallonSexting Jun20O0.pdf. 368 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
images, including semi-nude photographs, via cellular phones or over the 13 Internet. 1 The courts' definition does not address the involvement of adults, mostly likely because the facts in the cases heard have only involved juveniles sending nude and semi-nude pictures of themselves to other juveniles.
B. The Protection of Children Congress enacted The Protection of Children Against Sexual Exploitation Act (the Act) in 2008 to prohibit the visual depiction of a minor engaging in "sexually explicit conduct," which is defined as "graphic sexual intercourse, including genital-genital, oral-genital, anal-genital, between persons of the same or opposite sex or lascivious simulated sexual intercourse where the genitals, breast or pubic area of any person is exhibited." 15 The statute also includes "graphic or simulated bestiality, masturbation, or masochistic or sadistic abuse, and the lascivious exhibition of the genitals or pubic area of any person" in the definition of sexually explicit conduct.' 6 The statute defines a visual depiction as including "undeveloped film and videotape, data stored on computer disk or by electronic means which is capable of conversion into a visual image and data which is capable of conversion into a visual image that has been transmitted by any means, whether or not stored in a permanent format."' 7
13. See Miller v. Mitchell, 598 F.3d 139, 143 (3d Cir. 2010); U.S. v. Vann, 620 F.3d 431, 451 (4th Cir. 2010); U.S. v. Broxmeyer, 616 F.3d 120, 123 (2d Cir. 2010).
14. Miller, 598 F.3d at 146. The district attorney gave the students the option of participating in an educational class that would teach them about gender roles in society rather than face criminal prosecution charges. The students and their families sued the district attorney for violation of their constitutional rights when he threatened them with prosecution for refusal to attend the class. The appeal concerned an injunction that was granted by the trial court against the district attorney from prosecuting the teenagers for the photos under the state's child pornography laws. The court did not address the question of whether or not sexting would be considered pornography or protected first amendment speech. The injunction was made permanent by the Third Circuit and likely will have no further appeals. Id.
15. 18 U.S.C. § 2256 (2)(B)(i) (2008).
16. 18 U.S.C. §§ 2256 (2)(B)(ii)-(iv) (2008).
17. 18 U.S.C. § 2256 (5) (2008). 2011 An IntegratedResponse to Sexting 369
As written, the Act covers sexting between juveniles, re ardless of whether the pictures were created or disseminated voluntarily. The Act prohibits producing and disseminating sexually explicit pictures of any minor, regardless of the intent behind the production or dissemination. The problem arises when juveniles engage in sexting, because the pictures meet the definition of sexually explicit under federal and state statutes. When a juvenile takes a sexually explicit picture and passes her photo to another juvenile, the juvenile has now created and disseminated child pornography under the federal statute; the juvenile receiving the picture is now also in possession of child pornograwhy. However, the Act was not written with juvenile sexting in mind. Child pornography laws, including the Protection of Children Against Sexual Exploitation Act, were developed to deter adults from 2participating with or grooming children to create sexually explicit material. This Note will define "sexting" as juveniles' creating sexually explicit material, including pictures and video, for dissemination to other juveniles, without the participation of adults.
C. Juveniles Technology Use and Sexting The Kaiser Family Foundation conducted a survey of over 2,000 students in grades three through twelve and found that children are spending almost every moment possible using technology.21 They spend over seven and a half hours a day using a smart phone, computer, television or other device,
18. In 18 U.S.C. §2251(a), Federal Law prohibits: Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished. Federal Law also prohibits any person from knowingly mailing, transporting or shipping, including by computer, child pornography. 18 U.S.C. § 2252A (a)(1) (2009). In addition, the statute outlaws advertising or promoting child pornography. 18 U.S.C. § 2252A (a)(3)(B) (2009).
19. Id.
20. Ferber v. New York, 458 U.S. 747, 757-58 (1982) (discussing the harms of production, possessing, and viewing of material sexually objectifying children).
21. Tamar Lewin, If Your Kids are Awake, They're Probably Online, N.Y. TIMES (Jan. 20, 2010), http://www.nytimes.com/2010/01/20/education/20wired.html. 370 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
which does not include the hour and a half per day they spend text messaging, or the half-hour they spend talking on their cell phones.22 If one accounts for times when juveniles are using more than one device at a time, the number of hours increases to eleven and a half hours per day.2 3 Seventy- five percent of twelve- to seventeen-year-olds own a cell phone and the number of teens that own cell phones is steadily rising every year.24 Almost all teens who own cell phones send text messages, and fifty-four percent are considered daily texters. 25 Of these daily texters, one-third send more than 100 texts per day, which totals 3,000 texts per month. 26 Boys send fewer text messages than girls; on average, 2irls send eighty texts per day, while boys send only thirty texts per day. The frequency of text messaging between teenagers has surpassed all other forms of previous communication, including instant messaging, telephone calling, and social networking sites.28 The problem is not that juveniles own cell phones or send texts. The problem is that juveniles are increasingly using their cell phones to send text 29 messages with sexually explicit material to other juveniles.29 The following statistics shine light on the growing problem. Studies show that between four and twenty percent of juveniles have sent nude or semi-nude pictures of him or herself to another juvenile or posted the pictures online.30 Older
22. Id.
23. Id.
24. Amanda Lenhart, Rich Ling, Scott Campbell, and Kristen Purcell, Teens and Mobile Phones, Text messaging explodes as teens embrace it as the centerpiece of their communication strategieswith friends, PEW INTERNET & AM. LIFE PROJECT 2 (Apr. 10, 2010), http://www.pewintemet.org/-/media//Files/Reports/20 10/PIP-Teens-and-Mobile- 2010-with-topline.pdf (finding that in 2004, only forty-five percent of twelve to seventeen year olds owned a cell phone).
25. Id. at 2.
26. Id.
27. Id. at 3.
28. Id. at 9.
29. Id. at 4.
30. In a 2008 online survey of653 teens, defined as age thirteen to nineteen, twenty percent of teens reported having sent a nude or semi-nude picture. Sex and Tech: Results from a Survey of Teens and Young Adults, THE NAT'L CAMPAIGN TO PREVENT TEEN & UNPLANNED PREGNANCY 1, 5 (2008), http://www.thenationalcampaign.org/SEXTECH/ 2011 An IntegratedResponse to Sexting 371
teens are more likely to send and receive sexually explicit messages; eight percent of seventeen-year-olds with cell phones have sent sexually explicit pictures, and thirty percent have received nude or nearly nude images on their phones.31 Seventy-one percent of girls and sixty-seven percent of boys have sent sexually explicit content to their boyfriends or girlfriends, and twenty-one percent of girls and thirty-nine percent of boys have sent a sexually-explicit message to someone they hoped to date. 32 Twenty percent of teens have received a sexually explicit message that was meant to be private and viewed only by the receiver, but instead forwarded it to other juveniles.33 Juveniles, even those who have admitted to enfaging in sexting, know that sexting can have serious legal consequences. Even though seventy- five percent of teens know that sending sexually explicit messages "can have serious negative consequences," thirty-nine percent of teens have sent these messages anyway.3 5 Serious negative consequences include having the picture forwarded to other juveniles, causing humiliation, and possible legal implications, such as prosecution under child pornography laws. 36
PDF/SexTech Summary.pdf [hereinafter Sex and Tech]. PEW reports four percent of cell phone owning teenagers have sent sexually explicit messages via text message. PEW surveyed 800 teens, defined as age twelve to seventeen. The number reported by the National Campaign to Prevent Teen and Unplanned Pregnancy is notably higher than the PEW study, mainly because the National Campaign used online responses from teens rather than the telephone polling research used by PEW. TEENS AND SEXTING, supra note 7, at 2. A 2009 online survey of 655 teens found that nineteen percent of teens have sent, received, or forwarded sexually explicit material through text message or e-mail. For the purposes of the Cox survey, teen was defined as age thirteen to eighteen. Teen Online & Wireless Safety Survey Cyberbully Sexting and ParentalControls, Cox COMMC'NS AND NAT'L CTR. FOR MISSING & EXPLOITED CHILDREN 3,34 (May 2009), http://www.cox.com/ takecharge/safeteens_2009/media/2009_teen surveyintemetandwirelesssafety.pdf [hereinafter Teen Online].
31. TEENS AND SEXTING, supra note 7, at 2.
32. Sex and Tech, supra note 30, at 2.
33. Id.
34. Teen Online, supra note 30, at 43.
35. Sex and Tech, supra note 30.
36. Teen "Textuality, " Youth Sexting: A Troubling New Trend, IND. YOUTH INST. 3 (Aug. 2009), http://www.iyi.org/resources/doc/Issue-Brief-SEXTING-AugO9.pdf. 372 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
Prosecution of juvenile sexters can result when a juvenile takes a sexual image of a minor and sends the image to another, as prohibited by current child pornography laws. Depending on the state or federal law, juvenile charges range from felony obscenity charges to creating and distributing 38 child pornography. Still, juveniles who send sexually explicit messages feel that sexting is a safer alternative to actual sexual activity.39 They fail to understand the long-term consequences and serious health risks implicated when juveniles engage in sexting. One reason for juveniles' nafve attitudes about sexting could be the fact that only a small percentage of juveniles that engage in sexting get caught.40 Through education and punishment involving parents and schools, deterrence can begin before juveniles become involved in the legal system. Juveniles will be able to understand the gravity of their decisions and the risk associated with participation in sexting.
II. IS SEXTING REALLY THAT HARMFUL? Juveniles that engage in sexting face health and psychological consequences. While there is little research detailing the exact harms caused by juvenile sexting, research on pornography and sexualization shines light on what is in store for juveniles creating and participating in sexually explicit pictures and videos. This section explores the health and psychological consequences associated with juvenile participation in sexting.
A. Early Sexualization and Pornography Technology is changing the way adolescents develop sexually.41 Technology offers adolescents an opportunity to partake in the "important task of exploring their sexual identity while avoiding the embarrassment of
37. Id.
38. Id.
39. One boy expressed in the poll that it's not a big deal because "we are not having sex, we are sexting. It's not against my religion or anything." TEENS AND SEXTING, supra note 7, at 8.
40. Teen Online, supra note 30, at 39.
41. See DK Katzman, Sexting: Keeping Teens Safe and Responsible in a Technologically Savvy World, 15 CAN. PEDIATRIC Soc'Y, ADOLESCENT HEALTH COMM., PEDIATRIC CHILD HEALTH, 41-42 (2010), http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2827324/pdflpch 15041 .pdf. 2011 An IntegratedResponse to Sexting 373
doing so face-to-face." 42 Text messaging provides a platform for exploration of sexual feelings for teens, because texting is a skill teens utilize to socialize and communicate with their friends.43 However, juvenile exploration of technology has been coupled with an increased exposure of juveniles to pornography. Ninety percent of eight- to sixteen-year-olds has viewed pornography on the Internet.44 Eighty percent of fifteen- to seventeen-year-olds have had multiple experiences with hard-core pornography.45 The juvenile mantra "that-would-never-happen-to-me" leads youths to believe that sexual exploration through technology carries few consequences because they lack the life experience to realize the long-term effects. 46 In recent years, the use of technology by teens has brought about the phenomenon of sexting. Shy, lonely or nervous teens can use sexting as a comfortable way to explore these feelings.47 However, sexting can lead to early sexualization of juveniles, resulting in lower self-esteem and other mental health problems, especially in young girls. 48 The American Psychological Association
42. Marsha Levick & Kristina Moon, ProsecutingSexting as Child Pornography:A Critique,44 VAL. U. L. REv. 1035 (2010).
43. Katzman, supra note 41.
44. The average age of first time exposure to pornography is eleven years old, and one in seven teenagers have been solicited online for sex. Ropeleto, supra note 1, at 7-8.
45. Ropeleto, supra note 1, at 7. In a study of six hundred American males and females ofjunior high school age and above, it was found that ninety-one percent of the males and eighty-two percent of the females admitted having been exposed to X-rated, hard-core pornography. Sixty-six percent of the males and forty percent of the females reported wanting to try out some of the sexual behaviors they had witnessed. Among high school aged juveniles, thirty-one percent of the males and eighteen percent of the females admitted actually doing some of the things they had seen in the pornography within a few days after exposure. Victor B. Cline, Pornography'sEffects on Adults and Children (2002), http://stop.org.za/Victor/o20Cline's%20Study.pdf.
46. Christine L. Williams & Donald D. Kautz, Tweens, Teens & Sexting, Nurses need to be informed to properly counsel both parents and kids, ADVANCE FOR NURSES (Oct. 19, 2010), http://nursing.advanceweb.com/Student-and-New-Grad-Center/Student- Top-Story/Tweens-Teens-Sexting.aspx?rpid=13.
47. Katzman, supra note 41.
48. AM. PSYCHOLOGICAL Ass'N, TASK FORCE ON THE SEXUALIZATION OF GIRLS, EXECUTIVE SUMMARY (2007), http://www.apa.org/pi/women/programs/girls/report.aspx. 374 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
reviewed more than three hundred studies to conclude that when girls are exposed to sexualized images, lyrics, fashion, and role models, they consider and treat their own bodies as sexual objects. 4 9 The APA study found that sexualization and objectification of girls can undermine their confidence and comfort with their own body, and may lead to emotional and self-image problems.o Early sexualization is also linked to mental health problems, including eating disorders, low self-esteem and depression.5 1 Pornography alters the viewer's mental, emotional, and social attributes. 52 A person exposed to pornography risks "developing sexually deviant tendencies, committing sexual offenses, experiencing difficulties in one's relationships, and accepting the rape myth."53 When children and adolescents participate in the production of pornography, the effects of the participation can be adverse and enduring.54 Exposure to pornography causes the user to believe uncommon sexual practices are actually common, and exposure to violent pornography increases punitive behavior towards sexual partners.55 Teenager's brains are like an adult brain with fewer miles, as the brain develops, synapses are growing rapidly, but many remain unconnected. 56 Juveniles can easily be influenced by their environments due
49. Id.
50. Id.
51. Id.
52. Paul C. Perrin et al., Health education's role in framing pornographyas a public health issue: local and nationalstrategies with internationalimplications, 15 PROMOTION & EDUC. 11, 12 (2008), http://ped.sagepub.com/content/15/1/11.full.pdf+ html.
53. Elizabeth Oddone-Paolucci et al., A meta-analysis of the publisherresearch on the effects ofpornography,NAT'L FOUND. FOR FAMILY RESEARCH & EDUC., http:// www.ccoso.org/library%20articles/Meta-analysis.pdf (last viewed Feb. 9, 2011). The rape myth is defined as "prejudicial, stereotyped or false beliefs about rape, rape victims, and rapists." The rape myth includes attitudes and beliefs that are used in order to justify male sexual violence against women. Janet Anderson, Rape Myths: Letters from the Editor,9 RESEARCH & ADVOCACY DIGEST 1 (May 2007), http://www.wcsap.org/ advocacy/pdf/rapemyths0507.pdf.
54. Perrin et al., supra note 52, at 12.
55. Id. at 12-13.
56. Debra Bradley Ruder, The Teen Brain: A Work in Progress,HARVARD MAGAZINE, Sept.-Oct. 2008, at 8, availableat http://harvardmag.com/pdf/2008/09- pdfs/0908-8.pdf. 2011 An Integrated Response to Sexting 375
to the rapid growth and development of their young brains.5 7 The psychological effects of viewing pornography should not be disregarded simply because juveniles voluntarily create the sexually explicit material.
B. Dating Violence and Suicide Sexting a romantic partner may appear to be a safe way to explore sexuality, but there has been an increase in juveniles' using cell phones to threaten their romantic partners. One in ten teenagers have received a threat from a romantic partner on their cell phone.58 Threats may be in the form of an ultimatum, requesting a partner to send a nude or semi-nude picture or the significant other will end the relationship.59 The threats and the pressure from significant others lead juveniles to send sexually explicit material that, normally, they would not send. 60 If a juvenile does send sexually explicit material to a partner, the partner can easily release the photo to friends, post it online, or threaten to do either.6 1 Females are more likely than males to feel the pressure to sext their partners.62 This discrepancy is disturbing in light of the recent rise in violence within dating relationships.63 The National Center for Victims of Crime reports that one in five high school girls have been abused by a boyfriend, and one in three teen dating relationships experiences "physical
57. Id.
58. See Stephanie Chen, Nude Photos and Cruel Messages, Teen DigitalDating Abuse Grows, CNN (Oct. 26, 2010), http://www.cnn.com/2010/LIVING/l0/26/ teens.digital.dating.abuse/.
59. Id.
60. Fifty-one percent of teen girls say that the reason they sent a sexually explicit message or image was because of pressure from a teen boy. Twenty-four percent of teen boys report pressure from friends as the reason they sent a sexually explicit message or picture. Sex and Tech, supra note 30.
61. Chen, supra note 58.
62. Chen, supra note 58. Fifty-one percent ofjuvenile girls felt pressured by a juvenile boy to send a sexually explicit message or image, while only eighteen percent of juvenile boys felt pressured by a girl. Id.
63. See Love is Not Abuse, Liz CLAIBORNE, INC. (2011), http://www.lizclaibomeinc. com/web/guest/ourprogramlina; see also Chen, supra note 58. 376 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
aggression."64 The Love is Not Abuse Program notes that, with the increased use of technology, sexting has become an increasingly popular method of abuse for teens in dating relationships.65 The use of cell phones and sexting between juveniles can have grave effects on teenagers. While increases in dating violence amongst teenagers is only one problem, other problems have arisen, such as teenagers taking their own lives. In Ohio, a high school girl sent a nude picture of herself in a text message to her boyfriend, who in turn forwarded it to hundreds of students in seven different local high schools. 66 She faced a great deal of bullying and taunting, and eventually hanged herself. 67 Unfortunately, this is not the only story of sexting that has led to suicide.68 Other juveniles have committed suicide after they sent a sext to someone they trusted, but who later shared it with other juveniles the original creator never intended.69 The Centers for Disease Control (CDC) reports that suicide is the third leading cause of death for youth between the ages of ten and twenty-four, resulting
64. Teen Dating Violence Fact Sheet, THE NAT'L CTR. FOR VICTIMS OF CRIME, http://www.ncvc.org/ncvc/AGP.Net/Components/documentViewer/Download.aspxnz? DocumentlD=38057 (last visited Feb. 2, 2011) (citing, Jay G. Silverman et al., Dating Violence Against Adolescent Girls and Associated Substance Use, Unhealthy Weight Control,Sexual Risk Behavior,Pregnancy, and Suicidality, 286 JAMA 572 (2001)).
65. Love is Not Abuse is an initiative by Liz Claiborne, Inc. that addresses partner abuse and seeks to reduce teen dating abuse and violence. Love is Not Abuse, supra note 63.
66. Cindy Kranz, Nude photo led to suicide, Family wants to educate teens about dangers ofsexting, CINCINNATI ENQUIRER (Mar. 22, 2009), http://news.cincinnati.com/ article/20090322/NEWS01/903220312/Nude-photo-led-to-suicide.
67. Id.
68. See Elizabeth Meyer, 'Sexting' and Suicide, PSYCHOLOGY TODAY (Dec. 16, 2009), http://www.psychologytoday.com/blog/gender-and-schooling/200912/sexting- and-suicide.
69. Jessica Logan had sent her boyfriend a nude picture and after they broke up he passed it along to other classmates. The taunting and bullying became so unbearable that Jessica hanged herself. Mike Celizic, Her Teen Committed Suicide Over 'Sexting', TODAY.COM (Mar. 6, 2009), http://today.msnbc.msn.com/id/29546030/ns/ today- parenting/. 2011 An Integrated Response to Sexting 377
in 4500 deaths every year.70 While little research exists on the direct consequences of sexting on a juvenile's health, the alarming effects of children's viewing and producing pornography may help to understand the recent suicides and dating violence occurring as a product of sexting. Sexting that results in suicide is usually the product of a sext being forwarded beyond the intended receiver to others who then harass and bully the sexter, leading the creator of the sext to feel humiliated.7 ' However, once the picture has been sent, the sender can do little to stop the picture from being circulated. The alarming result of sexting's possibility of leading to suicide highlights the need for more research on the health effects of sexting on juveniles.
C. New Technology and New Dangers Juvenile sexting typically happens within the context of a teen relationship or in hopes of beginning a relationship.72 The typical sexting scenarios involve messages between romantic partners, messages intended for romantic partners but shared with others outside the relationship, or messages between a juvenile and a peer with whom he or she hopes to start a relationship.73 However, some juveniles are engaging in sexting with people they meet online. The National Campaign to Prevent Teen and Unplanned Pregnancy survey reported that fifteen percent of teens engaged in sextin with people they only knew online and have never met in person. Similarly, the MTV-Associated Press survey on digital abuse reported that twenty-nine percent of those who have sent sexts sent them to people they
70. Youth Suicide, CTRS. FOR DISEASE CONTROL, http://www.cdc. gov/ncipc/dvp/ Suicide/youthsuicide.htm (last viewed Feb. 7, 2011). Of students in grades nine through twelve, fifteen percent reported "seriously considering suicide." Id.
71. Juveniles often engage in sexting, expecting the image to remain private; however, when the relationship between the sender and receiver deteriorates the private message may be forwarded throughout the juvenile's school. Lisa E. Soronen, et al., Sexting at School: Lessons Learned the Hard Way, NAT'L ScH. BD ASS'N'S COUNCIL OF SCH. ATTORNEYS (Feb. 2010), http://www.oakland.kl2.mi.us/LinkClick.aspx?link= SafeSchools%2FSexting+at+School+Lessons+Leamed+the+Hard+Way.pdf&tabid=656 &mid=3640.
72. TEENS AND SEXTING, supra note 7, at 6-8.
73. Id.
74. Sex and Tech,supra note 30, at 2. 378 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
only knew online. Once an image is sent, it is in the possession of individuals with whom the juveniles are not familiar, and unfortunately, the juveniles have no control over the dissemination of the photo. 76 Juveniles engaging in sexting with people that they meet online can result in dissemination beyond their high school and friends. With the use of the internet and social networking sites, the sexually explicit picture has the potential to be placed on the internet and circulated repeatedly without the juvenile ever knowing. Juveniles rely on technology to fuel their social lives and relationships. Because technology perpetually evolves, mechanisms need to be in place to respond to and to reduce the harms that technology can cause to minors. The problem of juvenile misuse of cell phones is here to stay.77 Prosecution of juveniles engaging in sexting is only a piece of the puzzle in order to stop the growing trend. Current approaches to handling the production and dissemination of juvenile-created sexually explicit material lack the coordination and cooperation of the many different influences in children's lives, and therefore, fail to combat the problem effectively. The involvement of parents and schools, as well as the government, is necessary to deter juveniles from engaging in the creation and dissemination of sexually explicit material.
III. CURRENT RESPONSE TO SEXTING CASES Juvenile creation of pornography and distribution to other minors is a relatively new phenomenon. Because it is so new, courts and legislatures have created diverse methods for responding to such cases. This section
75. Id.; KNOWLEDGE NETWORKS, THE MTV-ASSOCIATED PRESS POLL: DIGITAL ABUSE SURVEY 14 (Sept. 23, 2009), http://www.athinline.org/MTV-AP Digital AbuseStudyFull.pdf.
76. Once a teen has sent a sext message it can be disseminated beyond the way the teenage creator intended. Lois M. Collins, Sexting Often Leadings to Heartbreak, Humiliation,DESERET NEWS (Aug. 21, 2010), http://www.deseretnews.com/article/ 700059135/Sexting-often-leads-to-heartbreak-humiliation.html. Twenty-five percent of teen girls and thirty-three percent of teen boys have received a nude or semi nude picture shared with them that was intended for someone else. Sex and Tech, supra note 30, at 3.
77. Sexting is not "some passing teenage fad[;" society, including parents, schools, and the legal system, needs to learn to deal with it and not ignore the growing trend. Clay Calvert, Sex, Cell Phones, Privacy,and the FirstAmendment: When Children Become Child Pornographersand the Lolita Effect Undermines the Law, 18 COMMLAW CONSPECTUS 1, 60 (2009). 2011 An Integrated Response to Sexting 379
explores the current punishments available to prosecutors and how states are drafting new legislation to deter juveniles from participating in sexting.
A. ProsecutionofJuvenile Sexters Creation and dissemination of child pornography is a serious crime with severe repercussions for offenders. In order to be charged for child pornography, the federal statute requires that the creator "employs, uses, persuades, induces, entices, or coerces any minor to engage in, or . . . has a minor assist any other person to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct."79 However, juveniles are typically less culpable and less aware of the consequences of their actions. The Supreme Court has recognized that juveniles do not belong in the adult criminal justice system, and that rehabilitation and prevention efforts may enable them to become productive citizens. Federal, state and local governments have worked to pass legislation and prosecution plans in order to deter juveniles from participating in sexting, however, differences in approaches remain. 8 2 Under the current child pornography statute, sexting would carry a significant penalty if a juvenile were caught producing, distributing,
78. Production of child pornography carries a mandatory minimum of fifteen years in prison and a maximum of thirty years. 42 U.S.C. § 2251(e) (2008).
79. 18 U.S.C. § 225 1(a) (2008).
80. In Thompson v. Oklahoma, the Supreme Court acknowledged that: Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (plurality opinion). Scientific research has informed the criminal justice system in deciding how to handle juvenile cases. Juveniles' prefrontal cortexes are less developed and experienced, resulting in less ability to "inhibit, control, reason, and plan the way it would in a fully-developed adult." Kristen Burillo, Less CapableBrain, Less Culpable Teen? THE CIVIC COLUMN, REPORT FROM THE MERCYHURST COLLEGE CIVIC INSTITUTE (Sep. 2010), http://www.civicinstitute. org/wordpress/wp-content/uploads/2010/09/Civic-Column-Fall-2010.pdf.
81. Thompson, 487 U.S. at 835.
82. See infra text accompanying notes 98-116. 380 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
receiving, or possessing a sexually explicit image of a peer because the image contains a minor "engaging in sexually explicit conduct for the purpose of producing [a] visual depiction."83 Federal law does not provide an exception if a minor is the creator, possessor, or distributor, or if the minor is voluntarily or willingly engaging in the creation, possession, or dissemination of the visual depiction. Federal law requires a mandatory five to fifteen-year minimum sentence for producing, transporting or receiving child pomography images. Sentences for possession can also be lengthy, and offenders are usually required to register as sex offenders and pay restitution to victims.86 The struggle by prosecutors and legislatures over how to handle children's voluntary creation of pornography is widespread. State laws in some states leave prosecutors with no alternatives to punishment but to charge such juveniles under existing child pornography statutes that carry not only strict criminal sentences, but also negative stigma.87 State child pornography statutes generally follow the federal statute 89 in prohibiting the knowing production, receipt, distribution, and possession of sexually explicit images or videos of minors. 90 Under current federal and state statutes, juveniles caught sexting will usually meet the definition for child pornography
83. § 2251(a).
84. 18 U.S.C. §§ 2251-2252 (2008).
85. Id.
86. See 18 U.S.C §§ 2252, & 2252A; see also 42 U.S.C § 1691 1(1)(B)(iii) (2006) (sex offender registration); 18 U.S.C. § 2259 (2006) (mandatory restitution).
87. Girl Posts Nude Pics, Is Chargedwith Kid Porn, MSNBC (Mar. 27, 2009), http://www.msnbc.msn.comlid/29912729/; Mike Brunker, 'Sexting' Surprise: Teens Face Child Porn Charges, MSNBC (Jan. 15, 2009), http://www.msnbc.msn.com/id/ 28679588/.
88. The National Association of District Attorneys provides a guide for each state and their respective child pornography statutes. Child PornographyStatutes, NAT'L DIST. Arr'Ys Ass'N, NAT'L CTR FOR PROSECUTION OF CHILD ABUSE, http://www.ndaa. org/pdflChild%20Pornography%20Statutory%20Compilation%206-20 10.pdf (last updated June 2010).
89. See e.g., 18 U.S.C. §§ 2251, 2252, & 2252A (2008).
90. See e.g., id. 2011 An IntegratedResponse to Sexting 381
charges.9 1 However, prosecution for sexting is only appropriate in cases involving coercion or lack of consent.92 Prosecution of sexting is thus a valuable resource for prosecutors in limited circumstances. However, prosecutors must exercise discretion in charging juveniles and utilize parents and schools to help in deterrence. Prosecutors are allowed to exercise their discretion when choosing cases in which to pursue charges. 93 Prosecutorial discretion allows prosecutors to consider relevant factors and to choose whether to prosecute, in this case, juvenile offenders, or to send them to alternative programs.94 Prosecutors can look at factors such as "the cause behind the production (coercion); lack of amenability to rehabilitation; likelihood of rehabilitative success (and
91. The court has upheld convictions of juveniles, including the conviction of a sixteen year-old relating pictures of his sixteen year-old girlfriend. Mary Graw Leary, Self-Produced ChildPornography: The Appropriate Societal Response to Juvenile Self- Exploitation, 15 VA. J. Soc. PoL'Y & L. 42, 42-43 (2007) (citing State v. Vezzoni, No. 22361-2-III, 2005 WL 980588, at *1, 4 (Wash. Ct. App. Apr. 28, 2005)).
92. Material created without the juvenile's consent should have mandatory prosecution and harsh consequences. The lack of consent in creation of the materials places these situations perfectly in line with existing child pornography laws. Congress passed the Protection of Children Against Sexual Exploitation Act of 1988 (codified as amended in 18 U.S.C. § 2251) stating that: [A]ny person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in.. .with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing and visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished. 18 U.S.C. § 2251 (2008).
93. Prosecutorial discretion allows prosecutors to choose from different available options when prosecuting a criminal case. BLACKS LAW DICTIONARY 534 (9th ed. 2009). The NCMEC does not believe there is one way of handling all sexting cases. Policy Statement, NAT'L CTR. FOR MISSING & EXPLOITED CHILDREN (Sept. 21, 2009), http://www.missingkids.com/missingkids/servlet/NewsEventServlet?LanguageCountry-e n_US&Pageld-4130. Instead, it urges consideration of different factors, including whether the photos violate state or federal law, were the photos self-produced, and whether there was pressure or duress to produce the photo. Id.
94. Mary Graw Leary, Sexting or Self-Produced ChildPornography? The Dialog Continues - StructuredProsecutorial Discretion Within a MultidisciplinaryResponse, 17 VA. J. SOC. POL'Y & L. 486, 520, 550 (2010). 382 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
perhaps the frequency of exploitation)" , in deciding if a case should be prosecuted.9 6 For example, juveniles that have repeatedly been caught engaging in sexting may not be strong candidates for a lesser sentence and rehabilitation may not be the strongest option. 9 7 Prosecution is a valuable resource for deterring the most serious offenders; however, it is only part of the effort to deter and punish juveniles for sexting. While prosecution may be appropriate in cases involving coercion, widespread dissemination, or abuse, prosecution alone fails to fully address the consequences that arise for juveniles caught sexting. States are currently coming up with a wide array of options to handle juveniles and sexting within their states; however, most states fail to recognize the importance of parents and schools in deterring juveniles from sexting.
B. New State Sexting Legislation Since sexting is a relatively new phenomenon, states are just starting to implement effective legislation designed to punish and deter juveniles caught sexting.98 By passing such legislation, states recognize that sexting is a new problem and demonstrate willingness to find ways to protect juveniles from the harsh consequences of both participating in sexting and being charged under current child pornography laws. A continuum of laws and legislation varying in degrees of strictness and completeness exists among the several states. For instance, in Virginia it is a felony, regardless of age, to produce, possess or share lewd or explicit pictures of minors. 99 Thus, Virginia holds a child, regardless of his age or his role as creator, possessor or distributor of the explicit material, liable for a felony if he is a party to sexting 0ooIndeed, as recently as May 2010, five high-school students in Rocky Mount, Virginia were each charged with felony counts of felony
95. Id. at 550.
96. Other factors that support prosecution may include the circumstances around the exploitation, whether other juveniles were involved, what role the specific juvenile played in the exploitation, and the level of severity of the content. Id.
97. Id.
98. The National Conference of State Legislatures compiles and updates a list of legislation involving sexting for each of the states. 2010 Legislation, supra note 11.
99. VA. CODE ANN. §§ 18.2-374.1-18.2-374.1:1 (2007).
100. The Virginia Code contains no provision for differentiating between juveniles and adults for the purposes of their child pornography laws. § 18.2-374.1 (2007). 2011 An IntegratedResponse to Sexting 383
child pornography for sexting.' 0 Virginia allows prosecutorial discretion for charging juveniles who engage in sexting,102 but with this discretion comes the power to charge to the full force of the law. 0 3 The Ohio legislature is currently considering a bill that would prohibit a minor from recklessly creating, receiving, exchanging, sending or possessing a photograph or other material depicting a minor in a state of nudity by use of a telecommunications device. This legislation would create a new crime, separate from the child pornography statutes.' 05 The bill does not differentiate because the juvenile's sending, possessing, creating, or exchanging photographs or videos of themselves in a state of nudity.,o0 Under the bill, offenders caught with sexually explicit material would be guilty of "illegal use of a telecommunications device involving a minor in a state of nudity," which is a delinquent act charged as a "misdemeanor of the first degree if it could be committed as an adult." 07 The creation of a new crime would protect juveniles by limiting jurisdiction to juvenile courts and limiting the consequences of formal charges by charging the offense as a misdemeanor. 08 Legislation that focuses on keeping juveniles in juvenile
101. 5 Va. Students Charged with Sexting, UNITED PRESS INT'L (May 20, 2010), http://www.upi.com/TopNews/US/2010/05/20/5-Va-students-charged-with-sexting/ UPI-94941274400444/.
102. In Henry County, a commonwealth attorney stated that he often charges these cases as misdemeanor obscenity. Id.
103. Five Virginia teens were charged with felonies stemming from a juvenile female using a juvenile male's phone to take sexually explicit pictures. The male then sent the photo to other students. Five Va. Teens Charged With Felonies in Sexting Case, ROANOKE TIMES (May 20, 2010), http://hamptonroads.com/2010/05/five-va-teens- charged-felonies-sexting-case.
104. H.B 132, 12 8 h Gen. Assem., 2009-10 Reg. Sess. § 2907.324(A) (Ohio 2010). Another Ohio House Bill makes it a crime to knowingly exchange, send, post or possess a photograph, video, or other material. Id. at § 2907.324(A)(1)(b).
105. Id. at § 2907.324(E). Any minor caught in violation of § 2907.324(A)(1) is guilty of sexting. Id. The delinquent act is a misdemeanor in the third degree for the first violation and a misdemeanor in the first degree for any subsequent offense. Id.
106. Id. at § 2907.324(C).
107. Id.
108. H.B 132, 128' Gen. Assem., 2009-10 Reg. Sess. § 2152.02(C)(6) (Ohio 2010). 384 The Journalof ContemporaryHealth Law and Policy Vol. XXVII:2
court protects juveniles from the harsh penalties of current child pornography laws while still holding juveniles accountable for their actions. Legislation like Ohio's bill will be much more effective if prosecutors and lawmakers utilize parents and schools in the prevention efforts. Nebraska's law makes it unlawful to "knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers." 09 Nebraska provides an affirmative defense for juveniles caught engaging in sexting if the creator is under eighteen at the time of the creation of the sexually explicit image and the image contains no other person except the creator.110 Nebraska also makes it illegal for a person to "knowingly make, purchase, rent, sell, deliver, distribute, display for sale, advertise, trade or f rovide to any person" any sexually explicit visual depiction of a child. 11 Again, Nebraska allows the affirmative defense if the defendant was less than eighteen years old, the visual depiction only contains the defendant, the defendant had a reasonable belief at the time the sexually explicit image was sent that it was being sent to a willing recipient, and the recipient was at least fifteen years of age at the time." 2 Juveniles caught violating the Nebraska statute will be charged with a class III felony if they are under the age of nineteen years old. 13 The Nebraska statute makes important steps towards effective deterrence by holding juveniles accountable for sexting, while providing juveniles with affirmative defenses to avoid the harsh punishment. The Nebraska law also prohibits a parent, stepparent, legal guardian, or any person with custody of the child to consent to the participation of visual depictions of sexually explicit conduct, if the parent knew the content that was being displayed.114 By holding parents accountable, Nebraska recognizes the role parents play in effective punishment and deterrence ofjuvenile sexting. States need to find permanent and effective ways to deter juveniles from creating and distributing sexually explicit images and videos to prevent the
109. NEB. REv. STAT. Am. § 28-1463.03(1) (2009).
110. § 28-1463.03(5).
Ill. § 28-1463.03(2).
112. § 28-1463.03(6).
113. § 28-1463.04(1).
114. § 28-1463.03(4). It is a class D felony for the parent if he or she is found in violation of Section 28-1463.03(4). NEB. REV. STAT. ANN. § 28-1463.04 (2) (2009). 2011 An IntegratedResponse to Sexting 385
possible long-term health and social harms that sexting may cause. It is not reasonable to believe that legal measures alone will stop juveniles from creating sexually explicit material. While the law can be a powerful tool against serious offenders that coerce juveniles into participating in sexting, the law fails to address the fact that most juveniles who participate in sexting do so voluntarily.115 States have the constitutional authority to regulate the health and safety of their citizens and, accordingly, have the discretion to pass regulations and laws to protect the welfare of their citizens.l1 States should use their power to protect health and safety to create new and comprehensive legislation that addresses sexting and employs prosecutors, parents and schools in their deterrence efforts. States have begun to use their constitutional "police powers" to address juvenile sexting, but more coordination with other resources would better address the problem. Creating new crimes and providing affirmative defenses is a step in the right direction; however, effective legislation should include the utilization of all available resources, particularly parents and schools.
IV. CREATING A COORDINATED RESPONSE - UTILIZING PARENTS AND SCHOOLS FOR EFFECTIVE DETERRENCE AND PUNISHMENT Efforts of prosecutors and legislatures alone are not enough to thoroughly deter juveniles from engaging in sexting. While prosecution is appropriate in cases of coercion or abuse, prosecution will not effectively reverse the increase in juvenile sexting. New legislation efforts are important in addressing the gap in current child pornography statutes in order to ensure that juveniles are punished appropriately. However, prosecution efforts and legislation reform need to partner with the efforts of parents and schools. By combining education of parents and students with utilization of school and prosecution resources, deterrence and punishment of sexting can be more effective.
A. Effective Utilization of Parents Parents share many of the concerns of state legislatures and prosecutors in regards to the creation and dissemination of child pornography by juveniles. Parents are just as concerned with online solicitation of their children by
115. TEENS AND SEXTING, supra note 7, at 8.
116. In Mayor of the City ofNew York v. Miln., the Court ruled that regulations regarding the health and safety of state citizens were a valid police power. 36 U.S. 102, 128 (1837). 386 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
sexual predators as they are about drunk driving or drug experimentation.117 However, forty-eight percent of mothers admitted they do not always know what their children do online. Parents may be concerned for their children's online safety, but lack of understanding of the risks and consequences may prevent parents from becoming involved and thereby effectively addressing the problem. The American Association of School Administrators released an article stating that the first thing parents and educators can do to address juvenile participation in sexting is "undertake serious, comprehensive Internet safety education for youth." 19 Parents often struggle to stay current on cyber and cell phone fads, while teenagers look for new ways to maintain their privacy. The first step in effective prevention is to educate parents on the current technological trends and activities in which their children are involved.120 The National Center for Missing and Exploited Children (NCMEC) provides parents with online tools, such as educational materials and answers to questions about internet safety, to help parents monitor and understand their children's internet usage. 121 Other resources, designed to help parents, can be a helpful tool in efforts to keep their children from engaging in sexually explicit behavior or text messaging. 122
117. McAfee, Inc. Research Reveals Mothers Rate Cyber Dangersas High as Drunk Driving or Experimenting With Drugs, MCAFEE, INC. (Oct. 22, 2008), http://investor. mcafee.com/releasedetail.cfm?releaseid=348684.
118. Id.
II9. Id.
120. Tips for Parents on Sexting & Teens, The Best Tech Safety Policy is Education and Trust, TEEN LURES PREVENTION.COM, http://www.childluresprevention.com/pdf/ Sexting-Parents.pdf (last visited Jan. 30, 2011).
121. NetSmartz411 is an online resource designed for parents to learn about internet safety. NetSmartz4 11, THE NAT'L CTR FOR MISSING & EXPLOITED CHILDREN, http://www. netsmartz41 1.org (last visited Feb. 9, 2011).
122. Safety Web provides various online resources for parents, and the "Sexting 101" section discusses the scope of the problem and how to recognize if it has become a problem for your teen. Sexting 101 - Guide for Parents, SAFETY WEB (Feb. 14, 2010), http://www.safetyweb.com/prevent-teens-sexting. There is also advice on what to do if a parent catches a teen sexting. Id. Thatsnotcool.com provides information directly to teens about the use of the Internet and what is appropriate within dating relationships. FAMILY VIOLENCE PREVENTION FUND, U.S. DEP'T OF JUSTICE OFFICE ON VIOLENCE AGAINST WOMEN, & THE ADVER. COUNCIL, http://www.thatsnotcool.com/About.aspx. 2011 An IntegratedResponse to Sexting 387
Parents should also become informed on the implications sexting has for their children. By understanding the consequences of sexting, parents can have a more informed conversation with their children about sexting behavior. Parents can use the available online guides123 to learn about the technology that is becoming increasingly central to their children's lives. With enough information and facts about sexting and its consequences, parents can become strong deterrents for juveniles engaging in sexting. Discussing the responsibilities involved with owning and using a cell phone can help establish reasonable boundaries for the juvenile cell phone owner. After setting the standards, parents must adhere to them and follow infractions with punishments.12 Parenting can be considered a difficult task. Juveniles' seeking privacy and independence creates a struggle for a parent who wishes to stay involved in his child's daily activities.125 However, parents spend the most time with their children and should know their children the best. Unfortunately, parents have been left out of the punishment and deterrence of juveniles
The website offers games and interactive activities for teens to use in determining what is appropriate and also to spark conversation with their peers. Id.
123. There are many online guides to help parents understand and address sexting. The Cyberbullying Research Center compiled a fact sheet to give parents a basic understanding of sexting and the varied responses. Sameer Hinduja & Justin W. Patchin, Sexting: A Brief Guidefor Parents and Educators, CYBERBULLYING RESEARCH CTR., http://www.cyberbullying.us/SextingFact Sheet.pdf (last viewed Fed. 9, 2011). Safety Web provides parents with more information including statistics, harmful effects of sexting and guides on what to do if children are found sexting. Sexting 101- Guide for Parents,supra note 122. Other helpful resources include an online guide for parents to decode slang words used on the internet and in text messages. See Internet Slang Dictionary& Translator,NoSLANG.COM, http://www.noslang.com/articles.php. (last viewed Feb. 2011).
124. Parents should monitor their children's use and set rules. If children are found not following or violating the rules, consequences could include removing the picture or video capabilities on cell phones. Ernie Allen, "Sexting": A New Challengefor Educators and Families, Am. Ass'N FOR SCHOOL ADMINS. (Oct. 2009), http://www.aasa. org/content.aspx?id=7672& terms=sexting.
125. As a teen develops, "the reach for independence frequently leads to a teen resisting rules rather than complying with them." Independence and Rebellion, MASS. GENERAL HosP. FOR CHILDREN, http://www.massgeneral.org/children/adolescenthealth/ articles/aa independence and rebellion.aspx. (last visited Mar. 26, 2010). This resistance is a normal part of a teen's evolution toward independence. Id 388 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
caught sexting.126 Parents need to become a part of effective state efforts to deter juvenile sexting. By addressing parents' concerns and educating parents on the harms of sexting and what they can do to address the issue, parents can serve as the front lines of deterring juveniles from engaging in sexting.S127 If parents become educated on the technology and risks associated with juveniles participating in sexting, they may feel more comfortable monitoring their children's cell phone use and talking with their child about sexting. Parents that monitor or limit their children's text messaging have children that report sending fewer sexually explicit messages or nude images.128 Parents can ensure that their juveniles do not find themselves in situations where sending sexually explicit messages can end in jail time. The Apple Company recently won a patent that will give parents the ability to block their children's racy text messages.129 The blocker enabled on Apple's iPhoneTM will allow parents to control the types of messages their children are sending and receiving by detailing certain "forbidden content." The "forbidden content," such as sexually explicit language or images, would be removed before the message is sent from or received on the blocked phone.1 3 1 Parents could use this Apple feature to protect their
126. Child PornographyStatutes, supra note 88. State statutes do not include parents in the implementation of their new sexting legislation. See supra text accompanying notes 98-116.
127. NCMEC believes that parents must become more involved and aware in their child's lives so they can set limits on juvenile behavior. Ernie Allen, supra note 124. Ernie Allen is the President and CEO of the NCMEC. Id.
128. Sixty-four percent of parents look at the contents of their child's cell phone, and sixty-two percent have taken away their child's cell phone as punishment. Teens and Mobile Phones,supra note 24, at 3. Forty-six percent of parents limit the number of minutes their children may talk on the phone and fifty-two percent limited the times of day they may use their phone. Id. Forty-eight percent of parents use their child's cell phone to monitor their child's location. Id. at 4. Parents are more likely to report monitoring twelve to thirteen-year-old girls. Id.
129. Apple's War on Sexting, THE WEEK (Oct. 14, 2010), http://theweek.com/article/ index/208144/apples-war-on-sexting.
130. Michael Winter, Apple GrantedPatent to Block 'Sexting,' Other Phone Texts, USA TODAY (Oct. 13, 2010), http://content.usatoday.com/communities/ondeadline/post/ 2010/10/apple-granted-patent-to-block-sexting-other-phone-texts-/1.
13 1. Id. 2011 An IntegratedResponse to Sexting 389
children from sending or receiving explicit messages; however, the best way to deter a child from sexting is to educate the child on the harms and consequences associated with the behavior. If parents are able to stress to their children the dangers of engaging in sexting, schools and prosecutors will have a much easier job deterring behavior and enforcing effective punishments.
B. Schools: Using Education and Regulation to End Juvenile Sexting Students spend the majority of their childhood and adolescence in school.132 Between the actual school day and extracurricular activities, students regularly interact with school officials and spend significant time in school buildings. From the ages of five to eighteen years old, school plays one of the most influential roles in a child's life. Therefore, schools have a critical role in the protection of students, specifically in regards to preventing the production and dissemination of self-created pornography. Schools first should educate students about the consequences and dangers of creating this material, and then provide punishments that facilitate deterrence.
1. Teaching the Students About the Harms and Consequences of Sexting Education at school goes beyond the curriculum taught in the classroom. Schools provide a student's first lessons on what it means to be a citizen.,33 Educating our youth "is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order."' 34 Schools and teachers demonstrate the appropriate way for students to express themselves through their actions. As such, schools should educate their students about the legal implications and psychological
132. American juveniles spend 32.5 hours a week in school and the number has risen 7.5 hours in the last 20 years. Diane Swanbrow, U.S. Children and Teens Spend More Time on Academics, UNIv. RECORD ONLINE, UNIV. OF MICH. (Dec. 6, 2004), http://www.ur.umich.edu/0405/DecO6_04/20.shtml.
133. Bethel School Dist. v. Fraser, 478 U.S. 675, 683 (1986). School officials and older students at school are charged with setting examples and demonstrating the "appropriate form of civil discourse and political expression by their conduct and deportment in and out of class." Id.
134. Id. School officials and older students at school are charged with setting examples and demonstrating the "appropriate form of civil discourse and political expression by their conduct and deportment in and out of class." Id.
135. Id. 390 The Journalof ContemporaryHealth Law and Policy Vol. XXVll:2
dangers of producing sexually explicit images and videos and disseminating them to a volatile pool of peers. A relatively easy place for schools to start the discussion of sexting with their students is during health education classes. The Youth Online Safety Working Group released a report on information gathered from high school students discussing the prevention and punishment of juvenile sexting.136 According to the report, juveniles want schools to discuss sexting and provide them with education on this issue.' 37 The youths expressed that education about sexting should begin as early as middle school. They also reported that discussions with peers or during health classes would be appropriate forums to discuss sexting. 139 As early as middle school, health classes should address the effects and consequences of sexting. 140 Health education already explores adolescent sexual development, and sexting should become a part of that discussion. Discussions about juveniles and sexting should include the harms and consequences and can incorporate other issues facing juveniles and their technology use. 141 These classes should include proactive methods to prevent students from becoming victims of sexting and introduce students to available resources for help. Health educators should be trained to answer questions and talk with students about sexting. There should be an emphasis on providing students with enough
136. Information was compiled from a group of high school students in Virginia. The group may not be representative of all juveniles; however, their discussion provides anecdotal evidence useful to the discussion of educating juveniles on the dangers of sexting. InterdisciplinaryResponse to Youths Sexting, Recommendationsfrom the Youth Online Safety Working Group, NAT'L CTR FOR MISSING & EXPLOITED CHILDREN 2, http://ncmec.vo.llnwd. net/ol 5/downloads/special/InterRespYouthSexting.pdf (last visited Feb. 9, 2011).
137. Id.
138. Id.
139. Id.
140. Members of the group conducted for the survey expressed that they would like to be taught about sexting as early as middle school and suggested discussions occur in peer-to-peer programs, health classes, or discussions with their parents. Id.
141. Wherever possible, schools should utilize a variety of methods to educate their students about sexting. Schools should consider partnering with other organizations and providing training and awareness outreach for students on sexting, as well as bullying, cyberbullying, and computer/intemet safety. Sexting, AM. Ass'N FOR SCHOOL ADMINS. http://www.aasa.org/content.aspx?id=3390 (last visited Feb. 9, 2011). 2011 An IntegratedResponse to Sexting 391
information to allow them to understand the full legal and psychological consequences of their actions.142 Students need to have a mandatory class, such as a health education class, in which they can discuss the issues that currently face them as teenagers. These classes would bring important and sensitive topics, like sexting, to the forefront and would provide students with necessary information for the prevention of sexting. Additionally, the classes would enable educators to learn about other areas where schools can be helpful in educating students on safe usage of technology. There are many other ways in which educators can play a role in prevention. Schools can host roundtable discussions, where students could voice their opinions and concerns. These discussions would allow educators to learn what students think about sexting, as well as allow students to have meaningful discussions with peers about sexting. Educators could also host similar programs and roundtables for parents, which would give parents an outlet to express their concerns and would allow schools to teach parents about technology they may not understand. Teaching parents about sexting and its health and legal consequences would empower parents to have more meaningful discussions with their children about sexting, thereby helping to deter their children from engaging in sexting behavior. Creative lesson plans could be used in required courses, such as history or computer education, to discuss new and upcoming "hot topics" for students. For example, a democracy class could use a discussion of legislation to discuss current child pornography and sexting laws. Similarly, a technology class can discuss the permanency of placing information on the Internet. Integrating information on sexting into seemingly unrelated courses allows students to relate better to the subject matter taught in class and introduces the topics in such a way that students would consider them without directly addressing them. Avoiding the discomfort that could arise from focusing directly on sexting and similar topics will help to keep the dialogue about sexting going between juveniles and educators.
2. CreatingStrong Cell Phone Use Policies and PunishingStudents Engaging in Sexting Twelve percent of students say they are allowed to have their phone at school anytime.143 Twenty-four percent of students attend schools that ban cell phones; however, sixty-five percent of those students still bring their
142. Reece Manley, Sexting Prevention, Education and Intervention, PARENTING TEENS (Apr. 5, 2009), http://www.suitel01.com/contentleffective-intervention-for-teens- caught-sexting-al07401.
143. Teens and Mobile Phones, supra note 24, at 4. 392 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
cell phones to school everyday. 144 Fifty-eight percent of students at schools that ban cell phones have sent a text message during class. 145 Schools have policies in place that regulate cell phone use at school, but these policies do not seem to be deterring or punishing student cell phone use in school.14 6 While education of students on the consequences of sexting is an important step in deterrence, a strictly-enforced policy against cell phones at school, especially sending or receiving sexually explicit messages, needs to be developed and implemented in all schools. The Supreme Court has emphasized the need for states and school officials to have the power to proscribe rules and control conduct in schools. 147 The power to ensure safe and effective learning environments requires schools to limit the constitutional rights of students.148 For example, the Court has held that students' First Amendment rights differ from adults' when under the supervision of a public school.149 Schools do not have to tolerate speech that they deem inconsistent with their educational mission; it does not matter if the First Amendment would protect the speech outside of school.150 Schools can also prohibit "sexually explicit speech," even where speech would not be found legally obscene. s5 The Court has recognized that the school, not the court, is the best body to determine what speech is inappropriate in the classroom.152 Schools have the power to
144. Id.
145. Id.
146. See Cell Phones and Text Messaging in Schools, NAT'L SC1. SAFETY & SEC., http://www.schoolsecurity.org/trends/cellphones.html (last visited Feb. 9, 2011).
147. See Epperson v. Arkansas, 393 U.S. 97, 104 (1968); Meyer v. Nebraska, 262 U.S. 390, 402 (1923).
148. The Court recognized that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship." New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).
149. Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) (citing T.L.O., 469 U.S. at 340-342).
150. Id. at 685.
151. Id. at 685-86.
152. Id. at 683. 2011 An IntegratedResponse to Sexting 393
prohibit language, including sexually explicit language that violates their educational mission. 53 Therefore, schools have the power to prohibit students from sending and receiving sexually explicit messages or images while at school. With this power, schools should create and implement strong zero-tolerance policies for sexting during school hours and on school property. Schools have also been afforded flexibilit7 in maintaining security of students and in regulating school discipline. In order to prevent and punish sexting, schools will need to use investigations and search techniques to find and confiscate sexually explicit material. Courts have explored ways to accommodate individual Fourth Amendment interests with the school's interest in maintaining a safe environment for students.155 In New Jersey v. T.L.0, the Court ruled that students have a reduced expectation of privacy while at school, and that a search of a student's purse was not a constitutional violation. 56 The lowered expectation of privacy is based on the need for schools to "maintain order."l 57 Searches and seizures performed by a teacher or school official will be "justified at [their] inception when there are reasonable grounds for suspecting that the search[es] will turn up evidence that the student has violated either the law or the rules of the school."' 58 Given the discretion that school administrations enjoy to protect students' security and discipline, schools can and must institute strong policies and procedures to handle possible cases of student creation or dissemination of sexually explicit material while at school. The existence of a strong, enforceable cell phone policy at school would not only provide a punishment procedure, but would also afford administrators the confidence to discipline in accordance with the policy.
153. Id.
154. See Goss v. Lopez, 419 U.S. 565, 582-83 (1975).
155. D.R.C. v. State, 646 P.2d 252, 256 (Alaska Ct. App. 1982) (holding that school officials were not "law enforcement officers" for purposes of the Fourth Amendment and therefore their search was excluded from the Fourth Amendment constitutional protections).
156. New Jersey v. T.L.O., 469 U.S. 325, 332-33, 340-41 (1985).
157. Id. at 341.
158. Id. at 341-42. The court affirmed that constitutional rights of students in public school are not in line with the rights of adults in other settings. Id. at 338-42. 394 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
Often, educators are unsure of how to handle cases of sext-dissemination in school because they know that adults also should not possess sexually explicit photos of juveniles, and they fear repercussions of confiscating a cell phone containing child pornography.' 59 With a clear investigation protocol in place, educators would know what steps to take and who to contact in the event they catch a child sexting at school. In addition, educators would know when to call police and when to notify parents. Schools are already taking measures to stop sexting in schools. For example, in Indiana, a local school has developed a new policy under which any student found sending sexually explicit images or messages by cell phone could face serious consequences, including expulsion.160 In Florida, a school will be able to hold students accountable at school for photos that are sent, possessed, or viewed at school, regardless of when they were created.161 Punishment can range from a behavioral intervention to recommendation for expulsion.162 By maintaining a strict "no sending or possessing" policy, the school would give teachers and staff members a clear method to punish and deter sexting. These policies are a necessary step in the right direction for an overall policy against juveniles creating sexually explicit material.
V. CONCLUSION Juvenile sexting is a problem that needs to be addressed aggressively. The rise in juvenile sexting is startling due to the potential health risks. By viewing and creating pornography, juveniles are at risk for early
159. Teachers and school administrators need to be proactive in reviewing and revising current policies and procedures to avoid becoming involved in the sexting allegations by viewing the photos and to protect themselves from possible personal criminal liability. Procedures must be in place to ensure that the images are handled properly and that school employees are not in danger of violating local or state law. Sara G. Boucek, Dealing with the Nightmare of 'Sexting, 66 THE SCHOOL ADM'R. 36 (Aug. 2009), available at http://www.aasa.org/SchoolAdministratorArticle.aspx?id=4386.
160. The policy also condemns sharing, possessing or even viewing the material and applies to staff members as well. Sexting Condemned with New Policy, NEWS CHANNEL 15 (May 29, 2009), http://www.wane.com/dpp/video/crime/localwanekendallville school sextingcondemnedwithnew_policy_200905291551_revl.
161. Mark Jenkins, Sexting and Cyberbullying Crackdown at Orange County Schools, CENTRAL FLA. NEWS 13 (Oct. 13, 2010), http://www.cfnewsl3.com/article/news/2010/ october/161172/Sexting-and-cyberbullying-crackdown-at-Orange-County-Schools.
162. Id. 2011 An IntegratedResponse to Sexting 395
sexualization and the alteration of their mental, emotional, and social development. 163 Juveniles engaging in sexting are suffering from higher instances of dating violence and in extreme cases have turned to suicide to escape the bullying occurring after a sext has gone public. 164 Juveniles are also using sexting as a new way to explore their sexuality; however, they are not realizing the permanency of the sexually explicit pictures. 1 In some cases, juveniles are sharing sexually explicit images with strangers that they meet online. 166 Juveniles cannot realize the gravity of their choices because they do not comprehend the inherent dangers. Juveniles engaging in sexting may also face criminal liability.167 Even when a juvenile voluntarily creates and disseminates a sexually explicit picture, he or she is violating state and federal child pornography statutes. 16 Violations of child pornography laws result in harsh consequences such as jail time and registration as a sex offender.169 States are racing to address this problem through legislation, making sexting a lesser crime or providing affirmative defenses.! While prosecution and legislative reform are important steps in the effort of prevention, there remains a gap that only parents and schools can fill. Prosecutors, parents, and schools need to combine their efforts toward the ultimate goal of deterring sexting and saving juveniles from its harmful consequences. Parents can educate themselves on their juveniles' cell phone use, and use prevention methods, such as limiting text messages, to deter their juveniles from engaging in sexting. Parents are also able to decide if their individual child should have a cell phone with picture capability at all. Because parents know their children best, they can prevent a problem from developing for their children at school. Parents can also play an important role in alerting schools to problems their children may be facing due to
163. See Section 11 (A), supra.
164. See Section 11 (B), supra.
165. See Section 11 (A), supra.
166. See Section 11 (C), supra.
167. See Section III (A), supra.
168. See infra text accompanying notes 83-6.
169. Id.
170. See Section III (B), supra. 396 The Journalof Contemporary Health Law and Policy Vol. XXVII:2
sexting. If a parent is able to recognize when their children are sending or receiving sexually explicit pictures, the parent can notify the school in order to stop the problem early, before the picture is disseminated or before prosecutors need to become involved. Parents can also recognize if their children are exhibiting symptoms of depression or other health or psychological issues because of sexting or if they are experiencing dating violence. Parents can then notify the school of the problem, hopefully to find the source and stop the problem. By educating their children about the consequences, personal and criminal, of sexting at school, parents are showing their children that they are aware of the problem and are not going to ignore it. Such strong parental support can 17 itself be a powerful deterrent to delinquent behavior. 1 If parents are able to work directly with schools, there is a better chance of deterring juvenile sexting. In turn, schools should work directly with prosecutors and law enforcement in reporting cases of sexting. 17 2 Schools have the ability to identify situations in the classroom that are precipitating the creation and dissemination of self-produced child pornography. There may be identifiable behaviors, relationships, and situations within the school that are fueling the fire. Educators and school officials are in a unique position to identify student behaviors and address the related issues. The behaviors displayed at school will help schools and prosecutors punish and deter these behaviors. Schools can send cases to prosecutors and help provide insight into the situations and circumstances in which the sexually explicit material was created. Prosecutors can utilize schools to learn about activities and instances where juveniles are likely to engage in sexting and use this knowledge to make informed decisions about when and whom to charge.
171. Researchers found that parental support and control reduces juvenile delinquency. John Paul Wright & Francis T. Cullen, ParentalEfficacy and Delinquent Behavior: Do Control and Support Matter?, 39 CRIMINOLOGY 677, 678-80 (2001).
172. Once a teacher or school official suspects or discovers sexting they should consider the following things: (1) telling the parents of all the students involved; (2) reporting the sexting to the police; (3) reporting the sexting as suspected abuse or neglect; (4) minimizing exposure to child pornography charges; (5) whether, who, and how to discipline the students involved; and (6) preventing the harassment and bullying of students involved in sexting. LISA E. SORONEN ET AL., NAT'L SCH. BD. Ass'N's COUNCIL OF SCH. ATTORNEYS, SEXTING AT SCHOOL: LESSONS LEARNED THE HARD WAY (Feb. 2010), http://www.oakland.kl2. mi.us/LinkClick.aspx?link=SafeSchools%2FSexting+at+School+Lessons+Learned+the+ Hard+Way.pdf&tabid=656&mid=3640. 2011 An Integrated Response to Sexting 397
Schools can provide important information about juveniles and their personal situations to help prosecutors understand each juvenile's situation. Prosecutors can then investigate and decide which juveniles are appropriate for being charged and which juveniles should be handled through the school's disciplinary policy. With the help of legislative reform, prosecutors will have more options to decide if a juvenile should be charged with child pornography or with a lesser charge. Legislatures can also create funding opportunities for schools to provide education to their students and parents. By increasing education and awareness of both parents and schools, prosecutors can focus their efforts on the more serious cases of sexting that involve abuse and coercion. The combination of these efforts will result in a more coordinated and effective response to the sexting phenomenon. If parents, schools, prosecutors and legislatures can work together, sexting can be effectively punished and prevented.